395 F.

3d 10

BOSTON'S CHILDREN FIRST, et al., Plaintiffs, Appellants,

v.
CITY OF BOSTON, et al., Defendants, Appellees.
No. 03-2470.

United States Court of Appeals, First Circuit.

Heard September 14, 2004.
Decided January 18, 2005.

Robert J. Roughsedge, with whom Michael Williams, Chester Darling,

and CPCR: Citizens for the Preservation of Constitutional Rights, Inc.
were on brief, for appellants.
Frances S. Cohen, with whom Erica L. Hovani and Dechert LLP were on
brief, for appellees.
Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.
LIPEZ, Circuit Judge.

I.

Plaintiffs, a non-profit organization 1 and ten white children living in Boston,

challenged the City's former and current school assignment systems in a case
that the district court noted "may possibly be the concluding chapter in thirty
years of litigation over the effort to desegregate the Boston public schools."
Boston's Children First v. Boston Sch. Comm., 260 F.Supp.2d 318, 319
(D.Mass.2003). In rulings that we recently affirmed, the district court rejected
the majority of the plaintiffs' claims but awarded nominal damages to two
children who were denied seats at their preferred schools because of their race.
See Anderson v. City of Boston, 375 F.3d 71 (1st Cir.2004). Plaintiffs 2 then
sought attorney's fees as a "prevailing party" under 42 U.S.C. 1988. The
district court denied the motion, finding that the plaintiffs' de minimis success
on the nominal damages claim did not entitle them to a fee award. For the
reasons set forth below, we affirm.

Plaintiffs initiated the underlying suit on June 21, 1999, challenging the Boston
Public Schools ("BPS") Controlled Choice Student Assignment Plan ("Old
Plan") on the grounds that it improperly considered students' race when
assigning them to schools in an effort to achieve "ideal racial percentages."3
The plaintiffs sought a declaration that the Old Plan violated their federal and
state equal protection rights, as well as injunctive relief and damages.

On July 14, 1999, the Boston School Committee voluntarily amended the Old
Plan to eliminate race as a factor in the school admissions process ("New
Plan"). The plaintiffs responded by adding a plethora of claims to their suit.
They ultimately sought (1) a declaratory judgment that both Plans violated the
Fourteenth Amendment's Equal Protection Clause, 42 U.S.C. 1981 and
1983,4 Title VI of the Civil Rights Act of 1964,5 and Article 111 of the
Massachusetts Declaration of Rights;6 (2) a permanent injunction ordering BPS
to admit plaintiffs to the schools of their choice, prohibiting BPS from
considering race in school assignments and governance, ordering BPS to
redraw attendance zones, and granting BCF access to school records to monitor
BPS's compliance with these orders; and (3) nominal and compensatory
damages for plaintiffs who were not admitted to their preferred schools under
the Old Plan.

In February 2002, the district court ruled that it would consider the plaintiffs'
damages claim separately from their claims for prospective relief. The
plaintiffs filed a motion for summary judgment on the damages claim on
November 1, 2002, seeking nominal damages for all ten student-plaintiffs. That
motion noted that the defendants had admitted earlier in the litigation that two
students, John Feeney, Jr. and Kathleen McCoy, were denied seats based on
their race under the Old Plan.7 It also emphasized that the defendants had not
conceded that the Old Plan was unconstitutional. The parties then entered into
unsuccessful settlement discussions, with the defendants expressing a
willingness to pay "nominal damages" to Feeney and McCoy but an
unwillingness to address the plaintiffs' additional request that they admit the
Old Plan had been unconstitutional. The court ultimately granted the defendants
an extension for responding to the summary judgment motion, allowing them to
file their opposition after a bench trial on the plaintiffs' claims for prospective
relief.

Over the course of four rulings between 1999 and 2003, the district court
rejected all of the plaintiffs' claims for prospective relief. BCF I, 62 F.Supp.2d
at 262; BCF II, 98 F.Supp.2d at 117; BCF III, 183 F.Supp.2d at 395-401; BCF
IV, 260 F.Supp.2d at 334. In the last of these rulings, following the bench trial,

the court upheld the New Plan against the plaintiffs' equal protection challenge
and declined to retain jurisdiction to ensure that BPS did not return to using race
in its seat assignment policy. BCF IV, 260 F.Supp.2d at 330-34. The court
concluded by noting that
6

[P]laintiffs should not underestimate what they have accomplished. By bringing

this lawsuit, they have persuaded the School Committee to abandon a
constitutionally dubious school admissions policy. Plaintiffs have not obtained
all of the relief they sought, principally because the court believes that their
ultimate goal, mandatory neighborhood school assignments... is not
constitutionally compelled.

Id. at 334.

With the plaintiffs' claims for prospective relief thus resolved, the parties
returned to the issue of nominal damages. In their May 21, 2003 response to the
plaintiffs' motion for summary judgment, the defendants again conceded that
Feeney and McCoy had been denied seats based on their race and indicated that
they were "willing to have this Court enter judgment awarding nominal
damages to these plaintiffs." However, asserting that no damages may be
awarded absent the deprivation of a constitutional right, the defendants opposed
a nominal damages award for the eight plaintiffs who had not shown that they
were deprived of a seat based on their race. The defendants also urged the court
not to address the constitutionality of the Old Plan.

The court's May 27, 2003 ruling on the motion for summary judgment awarded
nominal damages to Feeney and McCoy on the grounds that they "were denied
seat assignments at their preferred schools because of their race" but without
expressly stating whether the Old Plan was unconstitutional. BCF V, at 1.
Stressing that nominal damages may not be awarded "absent the deprivation of
a constitutional right," the court denied damages to the remaining plaintiffs,
who could "make no showing of a deprivation under Texas v. Lesage, 528 U.S.
18, 21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam)." BCF V, at 1.
Although the plaintiffs who were denied damages appealed that denial, the
defendants did not cross-appeal from the nominal damages award.

10

The plaintiffs then moved for attorney's fees under 42 U.S.C. 1988(b), which
provides that in a federal civil rights suit, "the court, in its discretion, may allow
the prevailing party ... a reasonable attorney's fee as part of the costs." The
district court acknowledged that "a plaintiff who wins an award of nominal
damages is properly deemed a `prevailing party.'" Nevertheless, it denied any

attorney's fees, concluding that:

11

While "hollow" may be too harsh a word, a one dollar nominal award to two of
ten original plaintiffs, the entitlement to which was conceded by the defendants
from the virtual outset in an otherwise unsuccessful lawsuit, will simply not
bear the weight of the policy that Congress intended to promote by enacting
section 1988.

12

This appeal followed.

II.
13

Because a trial judge familiar with the intricacies of a case is in the best
position to evaluate a motion for attorney's fees, we review the denial of such a
motion for manifest abuse of discretion. See Diaz-Rivera v. Rivera-Rodriguez,
377 F.3d 119, 124 (1st Cir.2004). Accordingly, we "confine our review to
whether the district court has made a mistake of law or incorrectly weighed (or
failed to weigh) a factor in its decision." Richardson v. Miller, 279 F.3d 1, 3
(1st Cir.2002); see also Gay Officers Action League v. Puerto Rico, 247 F.3d
288, 292-93 (1st Cir.2001) ("Apart from mistakes of law ... we will set aside a
fee award only if it clearly appears that the trial court ignored a factor deserving
significant weight, relied upon an improper factor, or evaluated all the proper
factors (and no improper ones), but made a serious mistake in weighing
them.").

14

A. Fee-shifting pursuant to 42 U.S.C. 1988

15

"In the United States, the prevailing litigant is ordinarily not entitled to collect a
reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v.
Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
Congress, however, has created exceptions to this "American Rule," permitting
fee-shifting in some contexts to encourage meritorious litigation that benefits
the plaintiff and the public interest. See Blanchard v. Bergeron, 489 U.S. 87,
96, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). 42 U.S.C. 1988 is one such
exception. As previously noted, 1988(b) provides that in federal civil rights
actions, including those brought under 42 U.S.C. 1983, "the court, in its
discretion, may allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs."

16

Section 1988 requires a two-part inquiry: (1) whether the plaintiff is a

prevailing party, and (2) if the plaintiff is a prevailing party, what constitutes a

reasonable fee award. See, e.g., Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct.
566, 121 L.Ed.2d 494 (1992). The first inquiry has substantial implications
because, despite 1988's discretionary language, we have interpreted the
statute to mean that "`awards in favor of prevailing civil rights plaintiffs are
virtually obligatory.'" Diaz-Rivera, 377 F.3d at 124 (quoting Gay Officers
Action League, 247 F.3d at 293); see also Casa Marie Hogar Geriatrico, Inc. v.
Rivera-Santos, 38 F.3d 615, 618 (1st Cir.1994) ("prevailing plaintiff is
presumptively entitled to fee-shifting" in a civil rights case). Still, a court may
properly deny a prevailing party's motion for attorney's fees if circumstances of
the case would make a fee award unjust. Farrar, 506 U.S. at 118, 113 S.Ct. 566
(O'Connor, J., concurring); Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct.
1933, 76 L.Ed.2d 40 (1983).
B. Prevailing party status
17

To prevail, a party must "`succeed on any significant issue in litigation which

achieves some of the benefit [it] sought in bringing suit.'" Hensley, 461 U.S. at
433, 103 S.Ct. 1933 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st
Cir.1978)). A voluntary change in conduct due to the filing of the suit itself is
not sufficient to confer prevailing party status. Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 600-10, 121 S.Ct.
1835, 149 L.Ed.2d 855 (2001) (rejecting the "catalyst theory" as a basis for
prevailing party status); New Eng. Reg'l Council of Carpenters v. Kinton, 284
F.3d 9, 29-30 (1st Cir.2002). Rather, the benefit achieved must be a "judicially
sanctioned change in the legal relationship between the parties." Buckhannon,
532 U.S. at 605, 121 S.Ct. 1835.

18

The district court correctly concluded that prevailing party status cannot be
based on the School Committee's decision to amend the Old Plan, and plaintiffs
do not argue to the contrary. Although eliminating race in the seat assignment
plan was one of the plaintiffs' central goals in bringing the suit, a fee award
based on the School Committee's voluntary actions would rest on the "catalyst
theory" that the Supreme Court explicitly rejected in Buckhannon. See 532 U.S.
at 610, 121 S.Ct. 1835. The plaintiffs claim instead that the nominal damages
award makes them a prevailing party. We agree.

19

The Supreme Court has held that "a plaintiff who wins nominal damages is a
prevailing party under 1988." Farrar, 506 U.S. at 112, 113 S.Ct. 566. This
holding recognizes that nominal damages are a "material alteration of the legal
relationship between the parties" because "[a] judgment for damages in any
amount, whether compensatory or nominal, modifies the defendant's behavior
for the plaintiff's benefit by forcing the defendant to pay an amount of money

he otherwise would not pay." Id. at 113, 113 S.Ct. 566. Here, the district court
ordered the defendants to pay nominal damages to two plaintiffs, Feeney and
McCoy. As Farrar recognized, that order "materially alter[ed] the legal
relationship between the parties," and thus conferred prevailing party status on
the plaintiffs. Id. at 112, 113 S.Ct. 566.
20

In support of their argument that our case law dictates a contrary result on the
prevailing party issue, the defendants cite Maine School Administrative District
No. 35 v. Mr. R., 321 F.3d 9 (1st Cir.2003). There, we explained that "the
change effected [by the plaintiff's success] must be material; a purely technical
or de minimis victory cannot confer prevailing party status." Id. at 15; see also
Farrar, 506 U.S. at 111-12, 113 S.Ct. 566 ("[A] plaintiff `prevails' when actual
relief on the merits of his claim materially alters the legal relationship between
the parties by modifying the defendant's behavior in a way that directly benefits
the plaintiff."). It is true that many of our cases, including Maine School
Administrative District No. 35, consider the "technical" or "de minimis" nature
of a victory as part of the prevailing party inquiry, rather than in determining
what constitutes a reasonable award. 321 F.3d at 15. However, the Supreme
Court's holding in Farrar precludes any argument that an award of nominal
damages is "a purely technical or de minimis victory" that bars prevailing party
status. Id.

21

In Farrar, the Court specifically considered "whether a nominal damages award

is the sort of `technical,' `insignificant' victory that cannot confer prevailing
party status." 506 U.S. at 113-14, 113 S.Ct. 566. As we have already discussed,
the Court answered this question in the negative, concluding that nominal
damages effect a material change and therefore confer prevailing party status.
The "`technical' nature of a nominal damages award" bears instead on the
reasonableness of the fees awarded rather than on prevailing party status, and
the district court's analysis proceeded accordingly. Id. at 114, 113 S.Ct. 566.
C. Reasonable attorney's fee

22

The plaintiffs emphasize that we are "virtually obligat[ed]" to grant a fee award
to a prevailing party. Gay Officers Action League, 247 F.3d at 293. However,
as Farrar itself acknowledges, "[i]n some circumstances, even a plaintiff who
formally `prevails' under 1988 should receive no attorney's fees at all." 506
U.S. at 115, 113 S.Ct. 566.

23

Farrar was a 1983 civil rights suit in which a plaintiff sought $17 million in
damages against six defendants who had allegedly conspired to violate his due

process rights. A jury found that one of the defendants had "committed an act
or acts under color of state law that deprived [Farrar] of a civil right," but that
this conduct was not a proximate cause of his damages. 506 U.S. at 106, 113
S.Ct. 566. The district court awarded Farrar $1 in nominal damages and
$280,000 in attorney's fees. The Fifth Circuit reversed the fee award, finding
that Farrar's victory was too insignificant to confer prevailing party status under
1988.
24

The Supreme Court disagreed with the Fifth Circuit's reasoning but affirmed
the fee award reversal. It held that Farrar was not entitled to fees, despite the
fact that the nominal damages award conferred prevailing party status. The
Court explained that "the most critical factor in determining the reasonableness
of a fee award is the degree of success obtained." Id. at 114, 113 S.Ct. 566
(citation and internal quotation marks omitted). Where Farrar sought $17
million in compensatory damages but received only $1 in nominal damages, he
obtained such a small degree of success as to make "the only reasonable fee ...
no fee at all." Id. at 115, 113 S.Ct. 566.

25

Justice O'Connor wrote separately to explain the relationship between nominal

damages and a fee award. While "[n]ominal relief does not necessarily a
nominal victory make[,] ... a substantial difference between the judgment
recovered and the recovery sought suggests that the victory is in fact purely
technical." Id. at 121, 113 S.Ct. 566. Other relevant factors include "the
significance of the legal issue on which the plaintiff claims to have prevailed"
and whether the success furthered a public purpose. Id. at 121-22, 113 S.Ct.
566; see also O'Connor v. Huard, 117 F.3d 12, 18 (1st Cir.1997) (recognizing
similar considerations). Where the district court has properly weighed the
foregoing factors, there is no abuse of discretion to merit a reversal. See id.

26

Here, the court explained its denial of fees in an eight-page ruling that reviewed
the course of the litigation and set forth the relevant law. It concluded that the
nominal damages award, "the entitlement to which was conceded by the
defendants from the virtual outset," was too de minimis a victory in relation to
the plaintiffs' other claims to merit a fee award. See Farrar, 506 U.S. at 114,
113 S.Ct. 566; Me. Admin. Sch. Dist. No. 35, 321 F.3d at 14-15 (fee award
cannot be based on a "hollow victory"). The plaintiffs claim that this ruling was
an abuse of discretion because it failed to recognize the significance of the
nominal damages award namely, that the award included an implicit finding
that the Old Plan was unconstitutional and would thus have a preclusive effect
if the defendants attempted to revive the Plan. The defendants contend that the
award did not include such a finding.

27

We acknowledge that the language of the decision explaining the nominal

damages award is susceptible to both parties' readings. The court said the
following:

28

John Feeney[, Jr.] and Kathleen McCoy were denied seat assignments at their
preferred schools because of their race. For that reason they are entitled to an
award of nominal damages, and defendants do not contend otherwise.
Defendants are correct, however, that absent the deprivation of a constitutional
right, nominal damages may not be awarded. See Carey v. Piphus, 435 U.S.
247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). As the remaining plaintiffs
can make no showing of a deprivation under Texas v. Lesage, 528 U.S. 18, 21,
120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam), no damages, nominal or
otherwise, may be awarded.

29

BCF V, at 1. Although the nominal damages judgment does not specify that the
Old Plan was unconstitutional, the plaintiffs assert that such a finding was
necessarily implicit in light of the court's own statement that nominal damages
must be premised on a constitutional injury. Losing a seat assignment because
of race is not, per se, a constitutional deprivation. Race-conscious policies are
permissible if they are narrowly tailored to serve a compelling governmental
interest, which may include remedying past discrimination, City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989)
(considering whether Richmond's race-conscious plan for city construction
contracts was "narrowly tailored to remedy prior discrimination"), or achieving
educational diversity, Grutter v. Bollinger, 539 U.S. 306, 343, 123 S.Ct. 2325,
156 L.Ed.2d 304 (2003) ("[T]he Equal Protection Clause does not prohibit the
[University of Michigan] Law School's narrowly tailored use of race in
admissions to further a compelling interest in obtaining the educational benefits
that flow from a diverse student body."). Thus, the plaintiffs reason, the
defendants' concession about the role of race in the plaintiffs' seat assignments
does not, standing alone, admit the constitutional violation required to support
an award of nominal damages. The deprivation was unconstitutional only if the
assignment plan was not narrowly tailored to serve a compelling interest, or, in
other words, if the Old Plan was unconstitutional.

30

Yet, the nominal damages decision does not address the issues of compelling
interest and narrow tailoring that would be integral to a fully developed legal
analysis of the constitutionality of the Old Plan. Nor did the court explicitly
state that Feeney and McCoy had suffered a constitutional injury. Its comment
that nominal damages require such an injury was not an explanation for Feeney
and McCoy's award, but rather for the denial of damages to the remaining

plaintiffs. See BCF V, at 1. Indeed, the only basis that the court cited for
Feeney and McCoy's award was their loss of seats because of their race the
point conceded by the defendants. This language suggests that the award did
not include a finding that the Old Plan was unconstitutional.
31

We recognized this ambiguity in the nominal damages decision when we

considered the merits of this case on appeal, noting that "[a]lthough the district
court never explicitly described the Old Plan as unconstitutional, ... nominal
damages in this context require a constitutional violation." Anderson, 375 F.3d
at 80 n. 12. Based on this logic, we accepted "the colorable premise that the
Old Plan was unconstitutional" for the purposes of our analysis.8 Id. However,
the court's ruling, if any, on the constitutionality of the Old Plan was not
directly before us in that appeal. Now that we must decide in the context of this
attorney's fees appeal whether the court, in fact, ruled on the constitutionality of
the Old Plan, we conclude that there was no such ruling. Instead, the court
awarded nominal damages on the basis of the defendants' concession, which
acknowledged the dispositive effect of race in the school assignments of Feeney
and McCoy, but which rejected any conclusion that the Old Plan was
unconstitutional.

32

This conclusion is compelled by the following considerations:

33

(1) The constitutionality of the Old Plan was not actively litigated; the court
refused to consider injunctive or declaratory relief regarding the Old Plan once
the New Plan was in place. Indeed, the court's description of the Old Plan as
"constitutionally dubious" in a ruling denying prospective relief one month
before the nominal damages award, BCF IV, 260 F.Supp.2d at 334, signals that
it did not consider the constitutionality of the Old Plan a resolved question.

34

(2) The defendants' motion opposing summary judgment, filed soon after the
decision denying prospective relief, recognized that a finding on the
constitutionality of the Old Plan would require the court to try issues that it had
not previously considered and therefore urged the court to award damages
without reaching the constitutional issue. In essence, the defendants expressed a
willingness to pay nominal damages to Feeney and McCoy without admitting
any constitutional injury. As we have discussed, the language of the ensuing
award is consistent with this position.

35

(3) Any remaining ambiguity on this point is resolved by the district court's
decision denying attorney's fees. There, the court described the basis for the
plaintiffs' prevailing party status as "a one dollar nominal award to two of ten

original plaintiffs, the entitlement to which was conceded by the defendants

from the virtual outset...." (emphasis added). Again, the defendants had
conceded only that they were willing to pay damages because Feeney and
McCoy were denied seats based on their race, not because the Old Plan was
unconstitutional. The district court's description of its own judgment thus
forecloses the plaintiffs' argument that it found the Old Plan unconstitutional.
36

Viewed in this light, the nominal damages award does not represent a victory
on a significant legal issue. To the contrary, it represents such a minimal
success in the context of this litigation that the district court supportably
concluded that "the only reasonable fee is ... no fee at all." Farrar, 506 U.S. at
115, 113 S.Ct. 566. The district court did not abuse its discretion in denying
attorney's fees.

37

Affirmed.

Notes:
1

The non-profit organization, Boston's Children First ("BCF"), was a party to the
original suit but the court subsequently concluded that it lacked organizational
standingBoston's Children First v. Boston Sch. Comm., 183 F.Supp.2d 382, 402
(D.Mass.2002).

We recognize that the reference to "plaintiffs" in this decision could be a source

of confusion. When we refer to "plaintiffs" in describing the background of this
case, we are referring to all the plaintiffs who initiated the underlying suit.
However, when we discuss the plaintiffs who were prevailing parties in this
litigation, we refer only to the two plaintiffs who were awarded nominal
damages

As noted, the litigation for which plaintiffs now seek attorney's fees is part of a
long saga involving the desegregation of Boston's public school systemSee, e.g.,
Wessmann v. Gittens, 160 F.3d 790 (1st Cir.1998). For a more complete history
of the suit brought by the plaintiff children and BCF, see Boston's Children
First v. City of Boston, 62 F.Supp.2d 247 (D.Mass.1999) ("BCF I"); Boston's
Children First v. City of Boston, 98 F.Supp.2d 111 (D.Mass.2000) ("BCF II");
Boston's Children First v. Boston Sch. Comm., 183 F.Supp.2d 382
(D.Mass.2002) ("BCF III"); Boston's Children First v. Boston Sch. Comm., 260
F.Supp.2d 318 (D.Mass.2003) ("BCF IV"); Boston's Children First v. Boston
Sch. Comm., No. 99-11330-RGS (D.Mass. May 27, 2003) (unpublished) ("BCF
V"); Anderson v. City of Boston, 375 F.3d 71 (1st Cir.2004).

42 U.S.C. 1981 and 1983 prohibit deprivations of constitutional rights under

color of state law

Title VI prohibits institutions receiving federal funds from engaging in racial

discrimination. 42 U.S.C. 2000d

Article 111 states that "[n]o student shall be assigned to or denied admittance to
a public school on the basis of race, color, national origin or creed."

The defendants initially conceded in November 2000 that three students'

placements were affected by race. In August 2001, they retracted the admission
regarding one student, Kayleigh Barry-Meltzer, explaining that it had been
based on a mistaken assumption regarding the seating capacity at her preferred
school

In the appeal on the merits, the plaintiffs argued that the unconstitutionality of
the Old Plan required a presumption that the New Plan was also motivated by a
racially discriminatory purpose. We declined to adopt such a presumption,
noting that even if the Old Plan had been unconstitutional, "BPS voluntarily
discontinued the use of the Old Plan once it concluded that the Plan was
constitutionally suspect ... and replaced it with a racially neutral assignment
system...."Anderson, 375 F.3d at 84-85.